East Coast Lumber Co. v. Ellis-young Co.

• Decision Date: 22 January 1908
• Citation: 45 So. 826,55 Fla. 256
• Parties: EAST COAST LUMBER CO. v. ELLIS--YOUNG CO.
• Court: Florida Supreme Court

45 So. 826

55 Fla. 256

EAST COAST LUMBER CO. v. ELLIS--YOUNG CO.

Florida Supreme Court, Division A.

January 22, 1908

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by the East Coast Lumber Company against the Ellis-Young Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial ordered.

Parkhill J., dissenting in part.

Syllabus by the Court

SYLLABUS

A question propounded to a witness as to whether or not he ever heard a certain named person state anything in reference to the ownership of certain lands is too broad and general, not being confined to any time or place, or restricted in any way as to the admissions or statements as to which the witness is interrogated.

Where a question of a preliminary nature is propounded to a witness and it is objected to and the objection sustained, and the record fails to show the asking of any other questions, or any attempt to show by the witness the matters concerning which the preliminary question was propounded, and also fails to show that the trial court was advised as to the purpose for which such question was asked, an appellate court is not warranted in declaring that error was committed in sustaining such objection.

Where one deed refers to another, or to a map or plan of a survey for a description, the deed, map, or plan becomes as much a part of the instrument making the reference as if actually copied into it. Where a deed refers to other instruments for a full description, the maxim, 'Id certum est quod certum reddi potest,' would apply.

Where a deed is offered and admitted in evidence which refers to other instruments for a description of the property conveyed thereby, it is incumbent upon the party offering and introducing such deed to follow it up with other evidence and connect it with the other instruments therein referred to, or such of them as might be necessary, to identify the lands sought to be conveyed.

Where a deed has the names of two persons written in the place where the names of subscribing witnesses are usually placed, and the words 'In presence of' are written above the names of the two persons, this is a substantial and sufficient compliance with the statute as to the requirement by the statute of two subscribing witnesses.

A deed of the trustees of the internal improvement fund is prima facie evidence of title in the grantee, but such title may be overcome by a superior title.

Under the provisions of chapter 3127, p. 67, Laws 1879, conveyances of land by the trustees of the internal improvement fund were required to be attested by the seal of the Florida state land office, and the impression of said seal upon any deed purporting to have been made by such trustees 'shall entitle the same to be recorded in the office appointed by law for the record of deeds in each and every county, and to be received in evidence in all the courts of this state.' No subscribing witnesses were required to such conveyances, nor were such trustees required to affix their private seals thereto.

Recording officers in this state are not required to record official seals of public officers, and a certified copy of a deed duly recorded is not required to indicate the presence of such official seal thereon, in order to render the same admissible in evidence.

Where a certified copy of a deed is offered in evidence, a copy of the entire deed should be offered, and the certificate of the clerk thereto should so show, and the practice of omitting therefrom the description of other lands than those embraced in the controversy is dangerous and is disapproved, even though such omission might not under some circumstances render a copy of a deed so certified inadmissible in evidence.

COUNSEL

Axtell & Rinehart, for plaintiff in error.

Cooper & Cooper and E. J. L'Engle, for defendant in error.

OPINION

SHACKLEFORD C.J.

The plaintiff in error, hereinafter called the plaintiff, brought an action against the defendant in error, hereinafter called the defendant, in the circuit court of Duval county for the conversion of certain spirits of turpentine and rosin alleged to have been converted by the defendant, said property having been removed from certain described lands, which were situated in Baker county, Fla.

Three pleas were interposed by the defendant--not guilty, a denial of the title of the plaintiff to the property, and the statute of limitations--upon which issue was joined, and a trial had before a jury. We make no mention of the other pleadings in the way of motions, replications, rejoinders, and demurrers, for the reason that no point is made thereon, and it is sufficient simply to indicate the issues upon which the case was tried. Certain evidence offered by the plaintiff was excluded upon objection of the defendant, as well as certain evidence of plaintiff previously admitted stricken out on motion, and, under an instruction of the court, the jury returned a verdict in favor of the defendant, upon which judgment was entered, which the plaintiff seeks to have reviewed here by writ of error.

Five errors are assigned, all of which are based upon the rejection of certain evidence proffered by plaintiff and the exclusion of certain evidence previously admitted. No evidence was adduced by the defendant.

The first assignment is as follows: 'The court erred in sustaining defendant's objection to the question asked the witness J. L. Williams as to statements with reference to ownership of lands in question made by Carraway.'

We find that W. E. Carraway is the person who is specified by the plaintiff in the bill of particulars, furnished at the instance of the defendant, with having taken and removed the spirits of turpentine and rosin from the lsnds of the plaintiff, for the conversion of which the plaintiff seeks to recover damages from the defendant. J. L. Williams was the first witness introduced on behalf of the plaintiff. After the witness had testified, among other things, that the said Carraway was in the possession of certain lands in Baker county in the years 1896, 1897, and 1898, which the witness designates as certain named islands, swamp, and sloughs, presumably the lands from which the turpentine and rosin are alleged to have been removed, though the testimony at that stage is not clear upon that point, boxing and turpentining the trees thereon, he was asked the following question by the plaintiff: 'Mr. Williams, did you ever hear Mr. Carraway state anything in reference to the ownership of these lands?' All that the bill of exceptions discloses is that the defendant objected to the question, which objection was sustained, and an exception duly noted to the ruling. We are not advised as to what the grounds of the objection were.

Strictly speaking, the question as objected to was a preliminary one, as is admitted by both the plaintiff and the defendant in their briefs, and did not necessarily call for illegal or inadmisible testimony, and so, for that reason, might not have been objectionable. However, no such point is made before us; the plaintiff contending that it was preliminary to the asking of other questions 'for the purpose of showing that Mr. Carraway while working on the lands in question admitted that he had no claim to their ownership.' See Atlantic Coast Line R. Co. v. Crosby, 53 Fla. ----, 43 So. 318, and authorities there cited. We are confined to what is disclosed by the record, and, as it does not show the asking of any other questions or any attempt to show by the witness any such admissions by Carraway, we are precluded from following the plaintiff in its discussion along this line. As we have already pointed out, the grounds of objection to the question are not set out, so it seems sufficient for us to say that, even with the purpose which the plaintiff had in view, the question was certainly too broad, not being confined to any time or place or restricted to any admissions which Carraway may have made while in possession of the lands and engaged in turpentining them. In other words, the question so elaborately argued by the plaintiff is not before us for determination, and it becomes unnecessary for us to go into an examination of the cited authorities. Suffice it to say that no error is made to appear.

The second assignment is as follows: 'The court erred in refusing to admit in evidence certified copy of deed from George Westinghouse, Jr., and wife to John Paul, dated January 15, 1895.'

The title of the plaintiff to the lands from which it was claimed that the turpentine and rosin had been taken and removed having been put directly in issue by the pleadings, it became incumbent upon the plaintiff to prove its title, and the deed in question was offered as a link in the chain. Three objections were interposed, which were as follows:

'(1) That the paper purporting to be a copy of the deed does not describe any particular land, but refers to other conveyances for description of such lands, and, unless such other conveyances are introduced in evidence, it is immaterial and irrelevant.

'(2) That the original was not executed in accordance with the law, in that the witnesses do not purport to attest the signing, sealing, and delivering of the deed. The attestation clause, as to the witnesses, is wholly insufficient; the language being: 'In the presence of.' The original, therefore, has no subscribing witnesses within the meaning of the laws of Florida.

'(3) And on the further ground that it is immaterial and irrelevant in this cause, because it is not connected with the original source of title to make a complete title upon which the plaintiff could recover.'

The plaintiff informs us in its brief that the court, as a matter of fact, sustained the...